Published by Maxwell S. Kennerly, Esquire of The Beasley Firm, LLC

How To Excel At The Basics As A Young Litigator

A year ago, I posted the Young Lawyer’s Guide To Legal Marketing. My thoughts haven’t changed, i.e., find a mentor and then “build your practice the way you’d built a cake store or a plumbing business: through superior quality, exceptional customer service, making calls and wearing down your shoe leather. Get your name out there and make sure it’s associated with quality.” And be generous with your time.

Within that post I quoted another article with ten lawyer marketing tips for young attorneys, which began with “#1 – Excel at the Basics.” Let’s elaborate on how young litigators improve their “basics.”

1. What Not To Work On: Outwitting Witnesses At Trial

I hate to break it to you, but you were sold a bill of goods. You will not spend every day on trial. Depending on your firm, there’s a good chance you won’t spend any time actually questioning witnesses. Some associates do indeed spend a fair amount of time in court, and some even conduct full trials, but trust me on this point: you will not have a single Perry Mason moment in which you win a big case by outwitting a formidable witness.

Don’t worry about it. You know what real trial lawyers talk about at seminars and conferences and the like? How they learned to stop playing tricks and start working on their persuasive methods, like by developing case themes with their evidence and by building credibility with the jury.

Last year one of the biggest verdicts in the country was a $1.5 billion jury award in Maryland, two-thirds of it in punitive damages, against Exxon over a groundwater leak of gasoline that contaminated over 200 wells with methyl tertiary butyl ether (MTBE). Do you think that, after deft questioning by plaintiff’s counsel, an officer for Exxon admitted they lied to local government authorities about the protective measures the company took? Of course not. Every last part of the case had to be proven, piece by piece, to the jury. How?

2. “Turn Every Goddamn Page”

There’s some great journalism and historical writing out there — one of the parents of two kids that go to the same pre-school as mine just won a Pulitzer doing some fantastic work — but there’s only one Robert Caro. There’s only one biographer who, thirty years after the fact, can uncover proof that LBJ’s election to the Senate in 1948 was stolen. He has a new LBJ book coming out (ten years after his last one; for all his virtues, he is not a model of dispatch), and the New York Times explored his method:

For the Johnson books, he has conducted thousands of interviews, many with Johnson’s friends and contemporaries. (Lady Bird spoke to him several times and then abruptly stopped without giving a reason, and Bill Moyers, Johnson’s press secretary, has never consented to be interviewed, but most of Johnson’s closest cronies, including John Connally and George Christian, Johnson’s last press secretary, who spoke to Caro practically on his deathbed, have gone on the record.) He has spent literally several years at the Johnson Library, in Austin, Tex., painstakingly going through the red buckram boxes that contain Johnson’s papers, and he has been the first researcher to open some of the most revealing files there. “Over and over again, I’ve found crucial things that nobody knew about,” he said. “There’s always original stuff if you look hard enough.” He added that he tried to keep in mind something that his managing editor at Newsday, Alan Hathway, a crusty old newspaper­man once told him, after pointing out that Caro was the only Ivy Leaguer who ever amounted to anything: “Turn every goddamn page.”

“Turn every goddamn page” produces great journalism and historical works, and it wins cases. It is now your motto. Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.

How do you do that?

First, ask your client to give you every document they have, and to explain what they are. Second, serve the opposing party with custom-tailored interrogatories and requests for documents asking for everything. You won’t get everything so, third, serve requests for admission demanding they admit those documents are all the responsive documents. That will get you more, but still not everything, so, fourth, notice the deposition of the records custodian for the defendant, at their place of business, with custom-tailored document classes identified. Fifth, when there, ask the deponent if they’re the most knowledgeable person about each class and, if not, ask who is, and then get that person to come down (remember, you’re already there and so are they), and ask them, and keep going until you’re confident you have everything you can get.

Did I mention you also need to scour the Internet, and to call other attorneys who litigated similar cases?

It’s a laborious, time-consuming process, and it’s not necessary for every case. But you need to learn how to dig for documents, and then, once you have them, how to develop the patience to “turn every goddamn page.”

3. Learn How To Take And Defend Depositions

It was a great line, but I think Gordon Gekko misquoted Sun Tzu on “every battle is won before it is ever fought.” The closest Sun Tzu said was: “Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.”

Paraphrased: “Victorious litigators win in discovery and then go to trial, while defeated litigators amble through discovery and then seek to win at trial.”

You need to know how to prepare your witnesses, when to plan your depositions, what order to do depositions in, what documents you want them to bring, how to prepare an outline, how to react to tangents in the testimony, how to follow up on new information learned, how to handle obstructionist lawyers, what kind of coaching at depositions is sanctionable, and how to tell the difference between dishonest & knowledgeable, dishonest & ignorant, honest & knowledgeable, and honest & ignorant witnesses. Know the difference between known unknowns and unknown unknowns.

You get better at depositions by preparing for them, by doing a lot of them, and by taking time to think about and to evaluate what happened at prior depositions.

You don’t have to re-invent the wheel, though, and there are resources out there. Last week I received a review copy (one of the few perks of blogging) of D. Shane Read’s Winning at Deposition. I put it to the test by looking up “Asked and Answered,” one of the most common objections raised during depositions, and was gratified to see Mr. Read correctly describe the objection as baseless. That was enough to make me look through the rest of the book and, indeed, it succinctly captures many of the lessons attorneys should — but often don’t — learn about taking and defending depositions. It’s the cost of a fancy dinner with your spouse. If you’re still in the learning phase about depositions (and if you’re reading this post with “Young Litigator” in the title, you probably are), then check it out.

I don’t know why lawyers do this, and there’s a lot of them in the room so take heed, all of you, language like failures are staggering, violations of this magnitude rarely occur, stunning display of incompetence, bitter irony, breathtaking dereliction of duty are not only unpersuasive, they’re somewhat annoying. I don’t have time for rhetoric. I’m really, really busy. Why anyone would want this job, I don’t know…

But in any event, it’s just – I don’t know whether you stay up nights trying to think of clever phrases, but trust me, no judge that I’ve ever spoken to has ever said, Boy, can that guy turn a phrase. They only say, Boy, why didn’t he get to the point.

Don’t turn phrases. Get to the point.

5. Be Patient

When I turned 30, a fellow trial lawyer told me: “when I turned 30, I thought people would finally take me seriously. When I turned 40, they did.”

This is a profession, not a hobby. It takes time. The best time to plant a tree is 30 years ago. The second best time is today.

One of the best things I ever did was take a three day CLE on how to take depositions.

Guest

Max:
This is a great post; and a great blog.

Guest

Great post! It’s very important to read every page of every document. I’ve been quite surprised by how many of the defendants in my cases use the kitchen sink approach and send me way too many documents (as though they’re trying to say, “Look at how open and honest I am!”), and sometimes the stack contains something extremely important that I never would’ve thought to ask for.

Bertha Glasgow

“Turn every goddamn page” principle is the foremost for me- being informed about all the occuring details, doing your own research will give you much more tips than you dare to expect. Learning from the gained by the other experince is strategy that I rely to.

Max – I have lots of comments on your excellent post, but will address just “turn every page.” The effort you have described is not particularly sexy but is essential.

And the effort requires more than turning the pages of what you discover – it requires reading and understanding what is being is read. It often requires, at least for me, developing a chronology of events, documents, etc. and then re-reading key documents.

I cannot tell you how many times I have read certain important documents and missed a point until picking it up on the third, fourth, or tenth reading. Perhaps this says something about my inability to focus, lack of intellect, or whatever, but I confess to having read documents that I know are important where I fail to recognize an important point until after I have read it multiple times.

This is pick-and-shovel work, but it is pick-and-shovel work that wins cases.

Guest

How about not lying? I’ve had opposing counsel outright lie to me and to the court. Maybe it’s a “good” tactic, as I’ve never seen them get bashed for it by the court, but there’s nothing that looks as unprofessional as lying and it makes me think their case is extremely weak if they feel they have to resort to it. I will always have a very negative impression of those lawyers, and I would never refer them cases or speak highly of them to anyone.

Karen Susman

Very good article. I think delegation is another tip. When I work on witness preparation with attorneys’ clients, it frees up the attorney to work on the case. It’s not enough for witnesses to know the facts. The stress, body language quirks, lack of confidence, poor attitude and likability can jeopardize your desired verdict.

I’m a trial lawyer for injured people and businesses at The Beasley Firm, founded in 1958. The Firm’s legacy speaks for itself; the law school at Temple University was re-named the Beasley School of Law in honor of the Firm’s founder, James E. Beasley. We’re listed in [...]